Was Nicaraguan Tribunal a Kangaroo Court? Nonsense !

All through Eugene Hasenfus’ trial, conviction and sentencing by the Nicaraguan People’s Tribunal, our State Department has denounced the proceedings as a “show trial” by a “kangaroo court” that had been “set up to circumvent due process and persecute political opponents.” Surprisingly, the press, which knows how risky it is to rely on State Department pronouncements, seemed to take this one at face value. Reporters, editors and talk-show hosts repeatedly parroted the line that Nicaraguan justice could never provide a fair trial. Their main complaints:

- The conviction rate in the People’s Anti-Somocista Tribunal is more than 90%.

- Two of the three judges on the court are laypersons who are not trained as lawyers, and all are politically appointed by the Sandinista government.

- The tribunal is separate from the regular court system.

- The lawyers appointed for defendants are not paid. Nor is there any money to bring in witnesses from distant parts of the country.

- Lawyers have only a few days to prepare for trial, which is supposed to take no longer than 12 days.

- The Hasenfus trial in particular is just “political theater.”

These charges certainly look serious enough, until you consider some facts:

- The conviction rate in California criminal courts is currently 91%. The reason is that prosecutors don’t bring cases that they can’t win or haven’t already plea-bargained. So the conviction rate is a meaningless number; it tells you nothing about the fairness of the court.

- Lay judges are common around the world, even in parts of the United States. In that bedrock of democracy known as the state of Vermont, trial courts are set up just like Sandinista courts, with two lay judges and an attorney judge. Most of the lay judges, according to the New York Times, “are long-time Republican Party activists.” In England, according to a report in an American legal newspaper, “the lay justice system dates back to 1361, and in the past was used quite openly to keep the lower classes in their place.”

- Specialized courts outside the regular judicial system are common all over the world. In the United States we have separate military courts that impose criminal penalties, and their judgments are reviewed only rarely by the Supreme Court. And we have administrative courts whose decisions in civil cases are, for all practical purposes, final.

- It was not so long ago in the United States that criminal defendants had no right to court-appointed and -paid attorneys. When attorneys did the work at all, they did it for free. Today, court-appointed attorneys are paid so minimally, and reimbursement for witnesses and investigation costs is so inadequate, that many attorneys find that they can’t even cover their out-of-pocket costs. It is not surprising that Nicaragua can afford to be less generous.

- Most nations’ criminal proceedings are faster than ours. Short time limits are usually designed to ensure the defendant’s right to a speedy trial. The limits may sometimes work to the defendant’s disadvantage, and, if so, should be extended. But American-style procedural delay is not considered a touchstone of fairness in most other countries.

- All trials are political theater--remember the DeLorean case?--and we Americans excel in that art. Who was more theatrical in the Hasenfus trial? The Americans who sent two former attorneys general, Griffin B. Bell and Ramsey Clark, down to Managua as political symbols of the right and the left? Or the Sandinistas who carried out a rather sober trial in the same humble courtroom that has heard all the other cases of sabotage and terrorism against the government?

In sum, it is a naive American bias to believe that our courts are the paragon of fairness while the rest of the world plays fast and loose with due process. The procedures of the People’s Tribunal in Nicaragua are well within judicial practices accepted around the world. In many ways they mirror our own. This is not to say that those practices are perfect or even desirable. God knows, the judiciary here, in Nicaragua and elsewhere could use reform and needs constant watching.

It is to say that our State Department is spreading disinformation when it calls the Nicaraguan tribunal a “kangaroo court.” And it is also to say that our press should catch such lies, because it is through polemics like this that wars are started and lives lost.